Supreme Court to Hear Online Pandering Case

The U.S. Supreme Court agreed Monday to hear a case involving the overturned conviction of a Florida man for soliciting or offering online child pornography. The 11th Circuit Court of Appeals ruled the law includes protected free speech and is unconstitutional.

At issue is the conviction of Michael Williams of Miami for the possession and pandering of child pornography. Williams was convicted of both charges and is serving concurrent five-year prison terms. Williams appealed only the online pandering conviction, claiming the 2003 PROTECT Act passed by Congress is overly broad.

The Bush administration appealed the reversal, arguing in its Supreme Court brief, “The case implicates the compellingly important context of regulating conduct that supports the illicit child pornography market.”

For Williams that context began April 26, 2004, with an IM message that said, “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.”

A Secret Service agent investigating the chat room engaged Williams and they swapped non-pornographic images. Williams then suggested nude photos of his daughter, an offer that eventually led to a search warrant of his home, a pile of child pornography and convictions for both possession and pandering.

In reversing the pandering conviction, the 11th Circuit, while sympathetic to lawmakers’ “compelling interest” in protecting children, wrote Congress may not “burn the house to roast the pig. We do not question that strong federal laws are needed, but they must pass constitutional muster.”

Under the PROTECT Act, it is a felony to present in a “manner that is intended to cause another to believe” that material contains illegal child pornography, even if the material does not contain any illegal images. The 11th Circuit ruled that definition could include proud grandparents sending photos with the subject line, “Good pics of kids in bed.”

But U.S. Solicitor General Paul D. Clements, in his Supreme Court appeal, said the 11th Circuit erred in interpreting the law since the “crux of what this provision bans is the offer to transact in this unprotected material, coupled with proof of the offender’s specific intent.”

The PROTECT Act is just one iteration of Congress’ multiple attempts to pass constitutional laws against the possession and trafficking of child pornography. In the 1980s, Congress approved legislation that made it illegal to use computers to receive or distribute the materials.

Congress also expanded the then definition of child pornography to include non-obscene but sexually suggestive images of children. In 1996, lawmakers again expanded the definition to include virtual child pornography, a decision overturned as unconstitutional by the Supreme Court in 2002.

The Supreme Court said simulated pictures of child sexual images were not pornography as previously defined by the Court and were protected free speech.

A year later, Congress slipped the prohibition against virtual child pornography into a provision of the PROTECT Act, enhancing the penalties for existing pandering laws with tweaked language that lawmakers’ hoped would target the online offering or soliciting of child pornography –- virtual or otherwise -– over the Internet.

Williams was one of the first people charged under the new provision and is the first to appeal the law as unconstitutional.

The Supreme Court will hear oral arguments on the case this fall.

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